Professor Glenn Reynolds: The only legitimate government is Constitutional government

Socialists of all stripes have always resented the U.S. Constitution because it limits state power, and therefore inhibits the ability of the state to implement socialism. Since the financial crisis of 2008, however, the government has engaged in several activities of dubious constitutionality, and apparently gotten away with it. Perhaps encouraged by these events, the enemies of the Constitution are now coming out of the woodwork to tell us that the Constitution is obsolete and questioning whether it still matters.

In a recent podcast with economist Russ Roberts, University of Tennessee law professor Glenn Reynolds, better known to the blogosphere as Instapundit, provides a needed reality check. Prof. Reynolds points out that if the government rejects the Constitution, the people no longer have an obligation to obey the government. All power ultimately resides in the people, and the people lend power to the government through the Constitution. It follows that if the government breaks its contract with the people by refusing to confine itself to those powers lent to it by the people through the Constitution, the government has become lawless and illegitimate. Absent the Constitution, the government’s continued rule is based only on sheer force; in a word, tyranny.

The key exchange in the podcast occurs around the 30:00 mark. Here is a partial transcript, some of which we liberated from Ed Driscoll.

ROBERTS: We had a recent guest on the program, Louis Michael Seidman, and he suggested that the Constitution’s out of date. It makes us beholden to a group of dead people who lived over two hundred years ago, and we should just ignore it, unless something in it makes sense… basically [he thinks] we should keep good laws and get rid of bad ones; [keep] good practices, and get rid of bad ones. So you just avoid the Constitutional Convention all together. You just stop using the Constitution! What do you think of his argument?

After some preliminary remarks, Reynolds gives the following reply.

REYNOLDS: Here’s the problem with public officials — because that’s really [Seidman’s] audience — deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess.

So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.

ROBERTS: But his argument is that we already ignore the Constitution; it’s not really much of a binding document.

REYNOLDS: Oh, well, then I’m free to do whatever I want!  And actually, that is a damning admission, because what that really says is: If you believe Seidman’s argument; if you believe that we already ignore the Constitution anyway, then in fact, the government rules by sheer naked force, and nothing else. And if that’s what you believe, then all of this talk of revolution suddenly doesn’t seem so crazy, it seems almost mandatory.

ROBERTS: Well, he would say – well, I won’t speak for him, but some would say that, well, there’s a social contract, we’ve all agreed to kind of play by these rules…

REYNOLDS: Oh really?!

ROBERTS: …of electing officials, and…

REYNOLDS: Well, the rules I agreed to electing these officials are the Constitution. I thought we were going to ignore that. That’s my social contract.

REYNOLDS: Call me crazy, but I think that whenever somebody writes a piece in the New York Times saying we should ignore the Constitution and do what we want it’s, again, because they want more government and more power, and I’m not inclined to play along. And again, the only reason why I have to listen to anything any of these people says is twofold. One is that they’ve got a gun and the other is that the Constitution says I should listen. Only one of those isn’t vitiated if I just get a bigger gun.

ROBERTS: Yeah, that’s true.

Indeed, one cannot say on the one hand that government officials are free to ignore the Constitution, the highest law in the land, while on the other hand the people must obey even the rulings of the Spearmint Oil Administrative Committee.

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